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Imagereal Capture COMPLAINTS AGAINST THE MEDIA: A COMPARATIVE STUDY ACKNOWLEDGEMENTS The writer wishes to express his thanks to the Broadcasting Corporation and the Justice Department for generously making available material which is not normally accessible to the public. Particular reference should be made to Mr P. A. Fabian, Head of Programme Standards at the Corporation, and to Messrs B. Hayes and M. Booth in the Tribunals Division of the Justice Department. Their co-operation is gratefully acknowledged. Thanks are also due to Mr Noel Wesney of Radio Avon and to Dr L. Cleveland of Victoria University, both of whom provided a great deal of useful information. Finally, the writer wishes to thank Mr B. H. Slane, Chairman of the Broadcasting Tribunal, and Mr I. H. McLean, Secretary of the Broadcasting Corporation, for their invaluable comments on drafts of this article. Although the text owes much to their detailed and considered analysis, the views expressed remain solely those of the writer. A NOTE ON CITATION So far as is known, there is no established system for the citation of decisions of the Press Council, the Broadcasting Tribunal, the Broadcasting Corporation or the Committee of Private Broadcasters. Although these bodies do not use adversarial procedures in the determination of complaints, for standardisation and ease of refer- ence decisions will always be cited in the form Complainant v Newspaper or War- rantholder. Decisions of the Press Council are summarised in annual reports, which for convenience, will be cited in the unofficial form (1980) 8 NZPC Rep. 18. Deci- sions of the Tribunal will be referred to by number and date, but they may be located in the Gazette by reference to the heading "Broadcasting Act: Notices" in the index for the appropriate year. Some of the decisions of the Tribunal may also be found in the New Zealand Administrative Reports, Decisions of the Corporation and the Committee are not publicly available. It is inherent in the proper functioning of newspapers, radio and television that they will generate complaints by the public about aspects of their news, entertainment and advertising content. This paper examines the subject matter of these complaints and the rules and procedures by which they are determined. In New Zealand, there are important differences in substance and procedure between the electronic and the printed media in the matter of complaints; comparisons between the different media will be drawn where appropriate, and possible improvements to rules and procedures will be suggested. Part I is a descriptive section, setting out the procedures used for deter- mining complaints and the essential sources of the rules by which the valid- ity of each complaint is assessed. Part I1 is analytical, comparing and con- trasting the substance of various decisions made by the four principal complaint-hearing bodies. The dominant theme, which runs through both Part I and Part 11, is the elucidation of the readily observed fact that the electronic media are regulated more closely through the complaints procedure than the printed *Rhodes Scholar Canterbury Law Review [Vol. 1, 19811 media. The paper seeks primarily to document the extent of this phenome- non, but it also seeks to explain it and to assess whether any modifications to either complaints system are justified in terms of the wider public interest. A. Complaints Procedures 1. Definition For the purposes of this paper, a "complaint" is a formal complaint lodged by a member of the public with the appropriate authority stating his or her reasons for objecting to one or more specified items broadcast or printed by a particular station or newspaper. Informal complaints (tele- phone calls, abusive letters, etc.) are not considered. The different procedures by which complaints are disposed of are depicted in diagramatic form in Fig. 1. COMPLAINANT COMPLAINANT COMPLAINANT MINISTER OF 4 I BROADCASTING EDITOR BROADCASTINGI COMMKTEE OF CORPORATION PRIVATE 1 I BROADCASTERS PRESS BROADCASTING BROADCASTING+ BROADCASTING1 COUNCIL TRIBUNAL TRIBUNAL TRIBUNAL Newspapers BCNZ Programmes Private Radio Special procedure for the Minister of Broadcasting Fig. I: Complaii~rsStr~lctlfres The most important difference between newspaper procedures and broad- casting procedures is that the latter are principally statutory in origin whereas the Press relies exclusively on a system of self-regulation. The other important differences become clear when the procedures are examined in detail. 2. Newspapers A complaint concerning an item published by a member of the News- papers Publishers Association of New Zealand (N.P.A.) must first be referred to the Editor of the publication involved. If the Editor does not respond or if the response is not satisfactory to the complainant the matter may be referred to the Secretary of the Press Council. If the matter is clearly covered by a previous Council decision, or if the Council does not have jurisdiction to hear the case, the Secretary will reply to that effect. In all other situations the complaint will be examined by the Council, and further submissions may be invited from the parties in oral or written form. The Council then notifies the parties of its decision, and a Press Statement detailing the complaint and the reasons for the decision will normally be issued. There is no established procedure for the consideration of formal Cornpluints Against the Media: A Comparative Study 157 complaints against newspapers and magazines where the publisher is not a member of the N.P.A., and such complaints are not dealt with in this paper. The initiative for the establishment of a New Zealand Press Council came from the New Zealand Journalists' Association (N.Z.J.A.) in 1968, prompted in part by reports that the Labour Party intended to establish a statutory Press Council if it became the Government. The President of the N.Z.J.A., Mr Ian Templeton, was quoted as saying that a statutory Press Council would "make life exceedingly difficult for newspapers and probably also for journalists."' This is a revealing insight into a danger which the voluntary Press Council seeks to avoid by its existence and through its practice. The Council was finally formed in 1972 as a joint venture between the N.Z.J.A. and the N.P.A., funded principally by the latter body. The Coun- cil's constitution is modelled on that of the British Press Council, with certain modifications based on the experience of that body. The New Zea- land Council is very small, having only four members entitled to vote at each meeting, and its membership includes an independent chairman and a representative of the public. It is frequently noted that with the casting vote of the chairman, the independent representatives are able to outvote the industry representatives; this is quite the reverse of the position in the United Kingd~m.~ 3. Broadcasting Corporation Prograrnmes By virtue of the Broadcasting Act 1976, the Broadcasting Corporation of New Zealand is the only organisation currently allowed to operate a tele- vision station in New Zealand. The Corporation also operates the majority of New Zealand medium wave radio stations. All formal complaints con- cerning programmes broadcast by the Corporation must be addressed in writing to the Secretary of the Corporation, and they must set out the grounds for complaint." The complaint is referred by the Secretary to the Corporation's Head of Programme Standards, who will invite comment from whichever staff members he considers appropriate. They may include the producer of the relevant programme, the divisional head responsible for the programme (the Controller of News and Current Affairs, for example), the Director-General of the particular service (e.g. Radio New Zealand), the Office Solicitor, and the reporter, writer and cameraman. In exceptional circumstances, further written information may be solicited from the com- plainant or other parties involved. The various reports collected are then 'Evening Past, 22 September 1968. Journalists feared that a statutory Press Council would have compulsory jurisdiction and significant disciplinary powers. The volun- tary Press Council has consensual jurisdiction and no penal power other than the right to castigate the blameworthy newspaper, editor or journalist. Each nwespaper is morally obliged to publish decisions against it, and this obligation has been faith- fully discharged by the New Zealand Press. Nevertheless, the Council is sometimes criticised for a lack of power and for the absence of compulsory jurisdiction and these criticisms are considered in the conclusion of this paper. 'The Royal Commission on the Press (U.K.) reported in 1977 that the British Press Council suffered from the preponderance of press representatives over public repre- sentatives. 9roadcasr~r~gAct 1976, s. 25. 158 Cunterbury Law Review [Vol. 1, 19811 forwarded with the recommendation of the Head of Programme Standards to either the Corporation's Television Complaints Committee or its Radio New Zealand Complaints Committee. Each Committee comprises a chair- man (the Chairman of the Corporation chairs the Television Complaints Committee and the Deputy-Chairman chairs the RNZ Complaints Commit- tee), two or three other members of the Board, and a representative of the Corporation's staff. The recommendation of the committee is forwarded to the full Board of the Corporation for final decision. The complainant is, of course, advised of the decision, but the Corporation does not make its decision public unless the complainant himself has publicised the complaint, or the issue has in some other way aroused public interest. If the complainant is dissatisfied with the decision of the Corporation or with the action taken by the Corporation, or if the Corporation has not within 14 days after receiving the complaint notified the complainant of the date on which the complaint will be considered (the date being within a reasonable time after the lodging of the complaint), the complainant may refer the matter to the Broadcasting TribunaL4 The Tribunal is com- pletely independent of the Corporation, being separately constituted under the Broadcasting Act.
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